Surrogate Decision-Making and Advance Directives -- Nuts & Bolts --

Transcription

1 Surrogate Decision-Making and Advance Directives -- Nuts & Bolts -- Charlie Sabatino & Erica Wood Commission on Law and Aging American Bar Association National Aging and Law Conference December 2010 Slides at:

2 Untangling the Knots

3 What We Will Address What is Capacity? What is Surrogate Decision-Making? Decision-Making Standards for Surrogates Promises and Pitfalls of Financial Powers of Attorney Advance Directives Default Surrogate Consent Guardianship

4 What is Capacity?

5 What is Capacity? Decision-making capacity requires, to greater or lesser degree: (1) possession of a set of values and goals; (2) the ability to communicate and to understand information; and (3) the ability to reason and to deliberate about one s choices. President s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1982).

6 What is Capacity/Incapacity? Not global; decision-specific Never put a period after capacity No bright line; fluctuating Influenced by external factors; may be reversible

7 Incapacity What is it NOT? Advanced age Eccentricity Refusal of care Disagreement in high risk situations Medical diagnosis Poverty

8 Capacity To... Contract Make a will Give medical consent Live independently Vote Marry Manage finances

9 Capacity to Manage Finances Handing money Understanding financial concepts Managing checkbooks Understanding bank statements Paying bills Detecting fraud Understanding assets Making investment decisions

10 Capacity - Cardinal Rule - Capacity must be judged according to a standard set by that person's own habitual or considered standards of behavior and values, rather than by conventional standards held by others. Silberfeld & Fish, When the Mind Fails (1994)

11 Task Specific Legal capacity vs. Clinical capacity Has capacity Has capacity Diminished capacity Lacks capacity Lacks capacity

12 Lawyers Capacity Assessment Issues In Litigation -- challenging or defending capacity. In the Office -- capacity questions most often arise in transactional services. Does the Client have capacity to contract for my services? to complete the legal transaction? to do (fill in the blank). Need a conceptually sound and consistent process for collecting/weighing relevant information. Lawyers Handbook: A tool to collect relevant observations and make a rough determination + guidance in working w/ mental health professionals.

13 The APA-ABA Collaboration Assessment of Older Adults With Diminished Capacity: A Handbook for Lawyers (2005) ABA Commission on Law and Aging (COLA) & APA Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges (2006) ABA-COLA, APA & NCPJ Assessment of Older Adults With Diminished Capacity: A Handbook for Psychologists (2008) ABA-COLA & APA

14 The Lawyer s Handbook steps: 1. A structured initial assessment component and, if necessary, 2. Use of a clinical consultation or formal evaluation by a clinician, and, 3. A final legal judgment about capacity by the lawyer.

15 Handbook context: three facets of diminished capacity: A. Ethical guidelines for assessing client capacity. B. Approaches to capacity in state guardianship and conservatorship laws. C. Standards of capacity for specific legal transactions

16 What is Surrogate Decision-Making?

17 What is Surrogate Decision-Making? Decision-making options when the individual lacks capacity the 4 D s: 1. Directed Decision-making Per the individual s Instructions, e.g. Living Will 2. Delegated Decision-making To an appointed agent, e.g., Power of Attorney Health or Financial 3. Devolved Decision-making Per a default hierarchy established by law, e.g.,default Surrogate Laws 4. Displaced Decision-making By a court or administrative authority, e.g. Guardianship/ Conservatorship, Representative Payee

18 Courts decide (Displaced) Families decide (Devolved/Default) Individual (Directed) Others designated by individual (Delegated)

19 Predominant State Surrogate Legislation 1. Default Surrogate Laws (Devolved) 2. HC Advance Directives (Directed or Delegated) Living Wills / HCDPAs 3. Out-of-Hospital DNR Laws (Directed or Delegated, or Devolved) 4. Organ Donation Laws (Directed) 5. POLST (Directed or Devolved) 6. Financial Powers of Attorney (Delegated) 7. Guardianship Laws (Displaced)

20 Our Terminology Agent, attorney-in-fact, proxy Delegated Surrogate Generic for all substituted decisionmakers. Default surrogate One whose authority devolves on them as a matter of law or custom Conservator Authority from court over property Guardian Authority from court over person, but we will use this term for both person & property, unless otherwise specified Rep payee Appointed by SSA or other admin agency with authority only over benefits

21 Decision-Making Standards for Surrogates Surrogates must follow the substituted judgment standard = individual s known or probable wishes. A few states require clear and convincing evidence standard of patient s actual wishes. Most permit best interests standard, as the fall-back.

22 Are Substituted Judgment & Best Interest One Standard or Two? Best interest Substituted Judgment Best interest Substituted Judgment

23 Promises and Pitfalls Of Financial Powers of Attorney

24 Powers of Attorney For property Durable if for planning for incapacity Document by which one person ( principal ) gives legal authority to another ( agent ) to act on behalf of the principal. Generally must be signed & notarized.

25 PoA Advantages/Disadvantages Promotes autonomy puts you in drivers seat Avoids guardianship Cuts costs Helps family members Lack of monitoring Unclear standards for agent conduct Lack of awareness of risks Broad decision-making authority

26 Types of POA Abuse In creating of the POA (power given, not taken) Incapacity at execution Forgery/Fraud/Misrepresentation Undue influence Implementing POA (agent is a fiduciary) Transactions exceeding intended authority Transactions conducted for self-dealing Transactions contravening principal s expectations

27 Brooke Astor s Son Guilty in Scheme to Defraud Her Wealthy NY socialite Brooke Astor, Alzheimer s, age 105 Estate more than $180 million Son served as power of attorney Gave self unauthorized raise of $1 million Other counts of financial exploitation Neglected mother s care while enriching self Exemplifies financial elder abuse; need for Elder Justice Act

28 Build Protections into DPA Choose someone you trust Limit gifting powers Require co-signatory on important transactions Require periodic accountings You can revoke as long as still have capacity Seek advice of attorney to customize & ensue meets state law requirements

29 Uniform Power of Attorney Act (2006) Clear statement of agent s duties Act in accord with principal s expectations, best interests Stringent requirements for exercising hot powers likely to dissipate property or alter estate plan Third party refuse to honor if suspect abuse Liability of agents who commit malfeasance See

30 Power of Attorney Legislation Where Does Your State Stand? UPOA enacted in four jurisdictions (MD, VA, WI, V.I.) 2008 AARP/ABA Commission report compares current state laws with UPOA provisions that protect against abuse & promote autonomy _17_poa.pdf

31 Health Care Advance Directives

32 Health Care Advance Directives In the 1970s -1980s, states generally enacted multiple laws: Living Will, HCPoA with overlap from consent laws. Today about half the states have combined/ comprehensive Advance Directive laws But still much variation in detail, especially focused on forms.

33 30 years of research on Advance Directives 1. Most people don t do. 2. Hard to understand the forms. 3. Standard form not useful guidance. 4. People change mind. 5. Agent/proxy slightly better than clueless. 6. Health care providers clueless about the directive. 7. Even if providers know directive exists, it s lost in space. 8. Even if in the record, it s still lost in space.

34 What ADs Can t Do Can t provide cookbook directions. Can t change fact that dying is complicated. Can t eliminate personal ambivalence. Can t be a substitute for Discussion. Can t control health care providers.

35 What ADs Can Do 1. CAN be an important part of a communication process in advance care planning 2. CAN help you stop and think and DISCUSS. Less about specific medical decisions, more about GOALS, VALUES & PRIORITIES: 3. CAN empower and give direction if reflective of the patient s voice. Not the legislature s canned language.

36 Advance Care Planning Less focus on formal instructional documents Legal focus primarily on naming a proxy Discussion oriented (with proxy, family, health care providers) More broadly focused on goals + values, spiritual questions, family matters Less treatment focused, more on quality of life Developmental and iterative in nature (whenever any of the 5 D s occur) Conversion of goals to a portable plan of care: POLST if available

37 Signs of Change Rise of Workbook approaches e.g., Five Wishes 33 to 42 states (97-10) Trend toward simplification of state laws 1993 Uniform Health-Care Decisions Act POLST 11 states Oral ADs 15 states

38 Workbook Samples Consumer s Tool Kit for Health Care Advance Planning ABA Commission on Law & Aging Finding Your Way: A Guide for End-of-Life Medical Decisions, by the Center for Healthcare Decisions Sacramento Healthcare Decisions Caring Conversations, The Center for Practical Bioethics Good to Go Toolkit and Resource Guide, Compassion and Choices Thinking Ahead My Way, My Choice, My Life at the End, California Dept. of Developmental Services & Coalition of Compassionate Care of CA For Proxies: Making Medical Decisions for Someone Else: A How-To Guide, ABA Commission on Law & Aging

39 Selected Drafting Issues Agent s Scope of Authority/Discretion Be aware of statutory limits & post mortem authority. Be explicit. Maximum discretion? Do you want agent to be able to override written instructions, if any?

40 Selected Drafting Issues Often overlooked Authority to... Make anatomical gifts, autopsy, disposition of remains Contract for, hire, fire health care & support personnel Direct care even if Pregnancy -- DC/MD/VA permissive Change domicile. Execute releases & waivers (the carrot ) Institute legal action (the stick ). Consent to experimental treatment Delegate d-m during absence Care for pets Make mental health decisions (Mental Health Directive?)

41 Selected Drafting Issues Effective Date: immediate or springing? Determining D-M Capacity DC -- 2 physicians, one must be psychiatrist One must examine w/in 1 day preceding cert. MD 2 physicians unless otherwise specified One must examine w/in 1 day preceding cert. If can t communicate or unconscious, only 1 required. PVS confirmed by a neurologist, neurosurgeon, or other physician w/ expertise in cognitive functioning. VA - 1 physician + either 2nd physician or licensed clinical psychologist after personal examination. Recert. required every 180 days.

42 Selected Drafting Issues Specific Instructions: pros & cons If you do include specific instructions People change their minds. Recent medical history is important Focus on quality of life. What does that mean? Benefits & burdens are subjective. Never say never. Consider values history A secondary illnesses can complicate matters

43 Time to review AD When any of the 5 D s occur: 1. You reach a new DECADE 2. You experience a DEATH of family or friend 3. You DIVORCE 4. You receive a new DIAGNOSIS 5. You have a significant DECLINE in your condition as measured by Activities of Daily Living (ADLs)

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45 POLST why it is a sea change Last 30 years: standardizing patient communications statutory advance directives POLST Paradigm standardizing physicians EOL orders in order to implement patient s goals of care. Focus on here and now, high probability crises. POLST requires: 1. Find out patient s wishes re: CPR, care goals (comfort vs. treatment), antibiotics, N&H. 2. Translate into doctors orders on visually distinct (bright pink) med file cover sheet. 3. Ensure form travels with patient. At least 12 States have a version of POLST: CA, HI, ID, MT, NY, NC, OR, TN, UT, VT, WA, WV

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47 Default Surrogate Laws (Family Consent) Range/Priority of Surrogates Scope of Decision Making Authority Triggers/Pre-conditions How Disagreements are Handled Close Friend and Unbefriended Patient Summary chart:

48 Default Surrogates Laws 43 States + DC Evolved from many sources: 5 Free standing Acts 22 Part of comprehensive AD Law 4 Addressed by informed consent law 7 Part of Living Will Statute 2 Part of Health Care DPA Statute 4 Decision-specific surrogate consent KS, NJ & OK - medical research; WI - facility admission Implementation in real life situations --

49 Guardianship

50 Guardianship Definition Individual (or agency) appointed by court (probate, general jurisdiction).... With power and duty to make personal and/or financial decisions.... On behalf of another person... Whom court determines lacks decisional capacity. Terminology guardian conservator and more

51 51 State Guardianship Laws; Variability in Practice

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54 Guardianship A double-edged sword

55 Guardianship: A Double-Edged Sword Parens patriae roots of guardianship Guardianship unpersons individual (Associated Press, 1987) Loss of fundamental rights Inherent Tension Between rights and needs Between autonomy and beneficence Between self-determination and protection

56 Guardianship Part ogre and part Santa Claus

57 Guardianship Statutory Reform Trends Procedural due process Determination of incapacity Least restrictive alternative & limited guardianship Monitoring; court oversight Public guardianship See statutory charts at anshiplawandpractice.aspx

58 How is a Guardian Appointed Procedural Due Process Any person files petition Notice is it meaningful/understandable Presence of respondent at hearing Appointment of counsel, guardian ad litem, court visitor Hearing rights

59 Determination of Incapacity in Guardianship Proceeding Four elements in state guardianship law; mix n match Medical condition Cognitive element Functional element Risk of harm

60 Incapacity Definition in Uniform Guardianship & Protective Proceedings Act [Cognitive] unable to receive and evaluate information or make or communicate decisions to such an extent that... [Functional]... the individual lacks the ability to meet essential requirements of physical health, safety, or self-care, even with appropriate technological assistance.

61 Principle of Least Restrictive Alternative Constitutional doctrine Growing use of alternatives to guardianship Representative payee Power of attorney Trust Supports such as money management! Guardianship as LAST RESORT Enactment of limited guardianship provisions Use of substituted judgment standard of decision-making

62 Limited v plenary order Concept of Limited Order Guardian assigned only those duties & powers person is incapable of exercising Highlighted in UGPPA National Probate Court Standards directs judge to detail powers & duties & rights retained Language included in virtually every state statute 2008 chart by AARP Public Policy Institute at Practice.aspx

63 Crafting Limited Orders Judges are not like baseball umpires, calling strikes and balls or merely labeling someone competent or incompetent. Rather, the better analogy is that of a craftsman who carves staffs from tree branches. Although the end result a wood staff is similar, the process of creation is distinct to each staff. Just as the good wood-carver knows that within each tree branch there is a unique staff that can be released by the acts of the carver, so too a good judge understands that, within the facts surrounding each guardianship petition, there is an outcome that will best serve the needs of the incapacitated person, if only the judge and the litigants can find it. Larry Frolik, Stetson L. Rev. Spring 2002

64 Selection of Guardian Statutory preferences; judicial discretion Nomination/preference of individual Who are the guardians? Family members Friends Private professional guardians Private non-profit & for-profit agencies Public guardians

65 Guardian Accountability Who Guards the Guardians? Reports & Accounts Protection of Assets Court Review of Reports & Accounts Investigation,Verification & Sanctions Guardian Training/ Assistance Funding for Monitoring Guarding the Guardians: Promising Practices for Court Monitoring, AARP/ABA (2007)

66 Guardian Standards & Certification National Guardianship Association Standards of Practice & Code of Ethics, Center for Guardianship Certification, State certification programs

67 Long & Winding Road of Reform Gap between law & practice Little data; continuing press stories GAO September 2010 Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors (GAO , Need for continued advocacy!!

68 Slides available at: